Scottish independence: Nicola Sturgeon asked for Supreme Court reference two days after refusing to release indyref2 legal advice

Nicola Sturgeon formally asked the Lord Advocate to consider a reference to the Supreme Court just days after refusing to release legal advice on whether Holyrood had the power to do so.

The First Minister made the request for Dorothy Bain to exercise her power to refer the issue of whether the Scottish Parliament can legislate for a second independence referendum to the Supreme Court in a meeting on June 9 this year, heavily redacted minutes of three meetings show.

This was two days after the Scottish Government published selective legal advice on the topic of a second independence referendum following a lengthy Freedom of Information battle with The Scotsman.

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After refusing to release any information, citing legal professional privilege, ministers lost an appeal to the Scottish Information Commissioner (SIC), which forced them to release the advice.

The SIC agreed the public interest in releasing the information was significant enough to override the concerns of the Government.

Commissioner Daren Fitzhenry also argued the decision to release the legal advice relating to the judicial review involving former first minister Alex Salmond also demonstrated there were times when legal advice can be published.

However, ministers were urged by critics to “come clean” over the advice they had received around the central question of competency.

It is this question – whether Holyrood has the power to pass legislation to hold a referendum on independence – that is now set to be decided by the Supreme Court.

First Minister Nicola Sturgeon during a visit to the Forge Medical Centre in Parkhead, Glasgow in July
First Minister Nicola Sturgeon during a visit to the Forge Medical Centre in Parkhead, Glasgow in July
First Minister Nicola Sturgeon during a visit to the Forge Medical Centre in Parkhead, Glasgow in July

Documents also state the first meeting between the First Minister and the Lord Advocate on the topic of a potential reference to the Supreme Court took place on May 31 this year in St Andrew’s House.

This took place as finance secretary Kate Forbes was outlining £1 billion of forecasted cuts to public services across Scotland as she set out the Scottish Government’s Resource Spending Review.

This document – which the Institute of Fiscal Studies said was an 8 per cent cut in real terms to public sector budgets such as councils, policing, and education – included £20 million set aside to pay for an independence referendum.

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Reports from the Scottish Daily Mail also suggest spending on the Scottish Government’s new prospectus for independence has gone beyond £1m with 22 civil servants dedicated to the work.

A Scottish Government spokesperson said: “The Lord Advocate’s decision to refer was made following a request from the First Minster, as the First Minister set out to the Scottish Parliament on June 28.

"The Lord Advocate has a statutory power under paragraph 34 of schedule 6 to the Scotland Act 1998 to refer devolution issues to the Supreme Court. This is a power exercisable solely by the Lord Advocate, not by Scottish ministers collectively.

“The Lord Advocate has determined that it is appropriate for her to exercise her powers following detailed consideration of a number of factors, including that there is a genuine issue of law that remains unresolved which is of exceptional public importance.”

The fifth episode of the brand new limited series podcast, How to be an independent country: Scotland’s Choices, is out now.

It is available wherever you get your podcasts, including Apple Podcasts and Spotify.



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